Study On The Legal Application Of Tort Liability Of Environmental Pollution And Ecological Damage

In recent years,with the further development of the national economic level,social citizens pay more and more attention to environmental and ecological issues,and the development concept of "not only gold mountain and silver mountain,but also green water and green mountain" is deeply rooted in people's hearts.The third draft of tort liability of civil code responds to the environmental and ecological tort from the legislative level.It stipulates "environmental pollution and ecological damage liability" in article 1229-1235.Many articles are quite bright,which are different from the "environmental pollution liability" in the past tort liability law.This paper discusses the characteristics,imputation principle,constitutive requirements and responsibility bearing of this kind of tort liability,combined with comparative law analysis.The paper is divided into four chapters.The first chapter is an overview of environmental tort liability.Before the third draft of tort liability of civil code,the environmental tort liability was called environmental tort liability.Through the analysis of comparative law,the development of this kind of tort liability at home and abroad is clarified.In the era of tort law,the environmental tort liability can't summarize all environmental tort cases.The environmental law circle generally believes that "natural environment" is different from "ecological environment".However,in the past,the tort law on environmental tort only stipulates the type of act of polluting the natural environment,and does not explain what kind of tort liability should be borne by the act of destroying the ecology.The third draft of tort liability of civil code makes ecological environment and natural environment parallel,which makes this problem clear.Finally,it summarizes the characteristics of the liability for environmental pollution and ecological damage compared with other tort liability,which lays the foundation for the following description of such liability in the principle of liability,constituent elements and liability.The second chapter is the principle of liability fixation of environmental pollution and ecological damage.This paper introduces the evolution and application of the principle of fault liability and the principle of no fault liability in environmental pollution and ecological damage liability,analyzes the advantages and disadvantages of the principle of no fault liability adopted in the third draft of tort liability of civil code,and further puts forward suggestions on the application of the principle of liability classification.The third chapter is about the elements of the responsibility of environmental pollution and ecological damage.The constituent elements of tort liability are the standard to judge whether the actor should bear the tort liability,which has a very important position.The reason why the damage fact is replaced by the dangerous damage fact in the responsibility of environmental pollution and ecological damage is to take preventive measures to eliminate the damage to the continuing environmental pollution and ecological damage.Through examples,two kinds of hazardous facts that cause dangerous state and substantial damage are explained respectively.In judicial practice,although it is not clearly stated in the law,the burden of proof of harmful facts is generally borne by the victim,resulting in many victims' delay in fulfilling the burden of proof,and their legitimate rights and interests cannot be protected.The complexity,latent and many other characteristics of environmental pollution and ecological damage liability in tort and harmful facts make it difficult to identify the causal relationship of such liability.In the third draft of tort liability of civil code,the method of inversion of the burden of proof of causality is adopted to solve this problem.However,after comparing and studying the theories on the determination of such causality in various countries in the world,the author thinks that different methods of causality should be used comprehensively,in order to reduce the burden of proof,protect the interests of the victims and pursue the justice of the law,we should seek the best balance.The fourth chapter is the responsibility of environmental pollution and ecological damage.The third draft of the Civil Code stipulates the punitive compensation system for environmental pollution and ecological damage liability for the first time,by listing the reasons for supporting and opposing punitive damages to enter the tort liability law,we can draw the conclusion that punitive damages can be included but should be limited in the scope of application,the amount of compensation and the applicable procedures.The system of performance on behalf of others was born out of administrative law,after analyzing the definition and legislative status of the system of performance on behalf of others,the author believes that whether considering the nature and construction status of the legal system,or the design of the articles themselves,the introduction of the agency system in the responsibility of environmental pollution and ecological damage will cause many contradictions.Finally,based on the analysis of the problem,the corresponding modification ideas are put forward.